SLICING THE BALONEY LOAF:

[I]t is worth reviewing some of the key points made against the "rush to judgment" and note the more contestable contentions.

1. The campaign finance laws are not criminally enforceable and were never intended to apply in the circumstances.

Remarkably, one of the President's lawyers made this argument, and it is easy to dispose of, because it is simply wrong. Congress crafted the campaign finance laws with both civil and criminal enforcement.  52 U.S.§ 30109. Moreover, in 2002 Congress amended the statute to direct the U.S. Sentencing Commission to provide for enhancements when campaign finance violations  involve "a contribution, donation, or expenditure from a foreign source."  In day-to-day enforcement of the federal law, the Federal Election Commission (FEC) 'may seek a civil fine from a candidate for accepting illegal contributions or for other violations, but if the candidate appears to have had criminal intent,, the agency may refer the matter for prosecution to the Department of Justice.  The DOJ does not have to wait for the FEC's referrals.  Nothing in the foreign national prohibition from enforcement removes it from the statutory scheme for criminal enforcement.

Moreover, to say that the campaign finance law has never been applied in similar circumstances, is to say nothing meaningful. It has not been applied, because there has been only one case similar to this, and the exception occurred well before the enactment of the Federal Election Campaign Act. President Nixon and his campaign in 1968 evidently conspired with the South Vietnamese government to scuttle peace talks with North Vietnam. Nixon used intermediaries to send a message that the South Vietnamese should hold out for a Republican victory and a peace deal on more favorable terms that his Administration would deliver.

Since then, no presidential campaign has done anything like that - - until now. It makes no sense to argue the law should not be applied, by its plain terms, to activities within its clear scope, because up to this point no campaign has attempted what it is alleged that the Trump campaign has done here.

2. The information that the Trump campaign was seeking was only opposition research - information - and is not a "thing of value" within the election laws.

This, too, is not sustainable on any reading of the applicable precedent. "Anything of value" means what it says - - anything of value. That is to say, it refers to whatever goods or services that a campaign acquires to advance its electoral objectives. Moreover, that's precisely how the Federal Election Commission has read the term. Rick Hasen has come up with examples of the breadth of the Commission's interpretation of the term "anything of value." And that interpretation clearly covers information-opposition research.

A related argument advanced by Orin Kerr rests on the belief that only items that could be acquired in the marketplace, and for which there is a commercial equivalent, could constitute a "thing of value." It is not clear what the argument is based on. Any thing of value seems to mean just that, and whether it was acquired legally, or could be purchased somewhere, doesn't seem to have much bearing on whether it was beneficial to the campaign. [...]

4. An interpretation of the foreign national prohibition to apply to a communication about opposition research imperils free speech

Hasen has also done a nice job of exposing the limitations of this constitutional defense. The Supreme Court has been clear that free-speech considerations will be read narrowly in evaluating the constitutional limits on the regulation of foreign national electioneering activity.

Here the emphasis on electioneering: the Court affirmed a decision that allows for a foreign national to join wholesale in the public policy debate in the United States.  Russia could, for example, express its opinion on a range of issues, through written, televised, or digital communications on health care, tax policy and purely domestic issues. It cannot, however, seek to influence an election-not independently, or in coordination with a campaign, and not through the use of any medium of communication. 

Tweet   @brothersjudd